Annals of Health Law Volume 18 Article 3 Issue 1 Winter 2009 2009 Re-Shaping the Common Good in Times of Public Health Emergencies: Validating Medical Triage George P. Smith II The Catholic University of America Follow this and additional works at: http://lawecommons.luc.edu/annals Recommended Citation George P. Smith II Re-Shaping the Common Good in Times of Public Health Emergencies: Validating Medical Triage, 18 Annals Health L. 1 (2009). Available at: http://lawecommons.luc.edu/annals/vol18/iss1/3 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Annals of Health Law by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Smith: Re-Shaping the Common Good in Times of Public Health Emergencies: Re-shaping the Common Good in Times of Public Health Emergencies: Validating Medical Triage George P. Smith, II* It is widely believed that anything done in the public interest is good for society and good for the individual members of society. When the 'anything' involves the health of the people, the belief 1 is rapidly converted to doctrine. Doctrine nowadays means law. I. INTRODUCTION AND OVERVIEW There are three major categories of emergencies: (1) those arising from "grave political crises," such as terrorist attacks and armed international conflicts; (2) those resulting from economic events, such as the Great Depression; and (3) those born out of natural disasters, such as Hurricane Katrina, and wider "force majeure" events such as strikes.2 It has been noted, correctly, that modem society faces dangers comparable to those the Nation was forced to deal with at the beginning of World War II.3 Today, * Professor of Law, The Catholic University of America. In July, 2007, I was a Visiting Fellow at The Center for Law, Ethics, and Health at The University of Michigan's School of Public Health, where this article was researched and written in final form. I thank the Director of the Center, Professor Peter D. Jacobson, for his generous hospitality and support during my stay. I acknowledge, with pleasure, the student research assistance of Diane Paulitz. 1. Theodore Cooper, Shattuck Lecture - In the Public Interest, 300 NEW ENG. J. MED. 1185, 1185 (1979). 2. Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?, 112 YALE L.J. 1011, 1025 n.44 (2003). 3. RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY 3 (2006) [hereinafter POSNER, NOT A SUICIDE PACT]. See Bernadette Meyler, Economic Emergency and The Rule of Law, 56 DEPAUL L. REV. 539 (2007), for an excellent analysis of economic emergencies and states of political emergency. See generally Eric A. Posner & Adrian Vermeule, Emergencies and Democratic Failure,92 VA. L. REV. 1091 (2006) for an analysis recounting the governmental response to historical public emergencies, and suggesting increased judicial deference as a mechanism to improve response in modem-day emergencies. Published by LAW eCommons, 2009 1 Annals of Health Law, Vol. 18 [2009], Iss. 1, Art. 3 2 Annals of Health Law [Vol. 18 therefore, emergencies of one kind or another have almost become the "coin of the realm.",4 In emergencies of any character, the Nation's survival is imperiled and the Executive Branch must act to preserve the social order.5 Also, it has been argued that the Executive has a "penumbra of powers" in excess of those enumerated in Article II of the Constitution which allows him to act decisively in times of emergency. 6 Of utmost concern to civil libertarians, with regard to the execution of these powers, is that individual liberties or civil rights-particularly minority interests of an ethnic, ideological or political character-will be subject to abuse, compromise, or even total abrogation.7 As early as 1824, the United States Supreme Court recognized the power of the states to compel isolation and quarantine.8 In 1905, the Court determined in Jacobson v. Massachusetts that citizens are subject to certain 4. This phrase is adapted from its original Old English usage to illustrate that emergencies are now quite common. Compare 1512, 4 HEN. 8, c. 19 § 14 (acknowledging "[s]ilver and prente of the coigne of this realme"), with The Cambridge History of English and American Literature (A.W. Ward & A. R. Waller eds., bartleby.com 2000), http://www.bartleby.com/217/1112.html ("Shakespeare, Fletcher, Jonson, Spenser, had imposed themselves on criticism; and criticism grew rich (as it always does) by accepting and passing these great poets as current coin of the realm."). See KENNETH R. WING, ET AL., PUBLIC HEALTH LAW (2007), for reference citations to past emergencies as well as ongoing ones, such as HIV/AIDS and terrorism. 5. Meyler, supra note 3, at 541-43. See WING, supra note 4, where the authors present and analyze the past epidemics of cholera in 1832, 1849, and 1866, id. at 1, wider epidemics, id. at 152-53, tuberculosis, id. at 153 passim, HIV/AIDS, id. at 188 passim, Severe Acute Respiratory Syndrome (SARS), id. at 199 passim, influenza in 1918-19, id. at 217 passim, and bioterrorism, etc., id. at 234 passim. See generally RICHARD A. POSNER, CATASTROPHE: RISK AND RESPONSE 247 (2004) (noting the Black Death as one of the most horrific pandemics in history as it dissipated a significant part of the European population). 6. Meyler, supra note 3, at 548-49; see, e.g., Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, 42 U.S.C. §§ 5121-5206 (2000 & Supp. V 2005) (conferring broad powers upon the President in times of domestic emergencies). But see Mark V. Tushnet, Emergencies and the Idea of Constitutionalism, in AT WAR WITH CIVIL RIGHTS AND LIBERTIES 177-78 (Thomas E. Baker & John F. Stack, Jr., eds., 2006) (presenting three positions on American constitutionalism during wartime, one of which suggests that the Constitution's general standards should be applied). 7. RICHARD A. POSNER, LAW PRAGMATISM, AND DEMOCRACY 296 (2003); POSNER, NOT A SUICIDE PACT, supra note 3, at 3. See generally Adrian Vermeule, Posneron Security and Liberty: Alliance to End Repression v. City of Chicago, 120 HARV. L. REV. 1251 (2007) (analyzing Judge Richard Posner's judicial philosophy in two momentous decisions: Alliance to End Repression v. City of Chicago (Alliance I), 742 F.2d 1007 (7th Cir. 1984) (en banc), Alliance to End Repression v. City of Chicago (Alliance II), 237 F.3d 799 (7th Cir. 2001). 8. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824). In assessing the extent of federal power under the Commerce Clause of the Constitution, the Court held (as to the licensing of vessels on waters within the jurisdiction of New York) that "[i]nspection laws, quarantine laws, health laws of every description" are within the Commerce Clause powers of Congress. Id. http://lawecommons.luc.edu/annals/vol18/iss1/3 2 Smith: Re-Shaping the Common Good in Times of Public Health Emergencies: 2009] Validating Medical Triage laws which promote public health and safety for the benefit of the common good.9 Since that time, public health ethics (unlike bioethics, which stresses non-malfeasance as one of the cornerstones of individual health care decisions)' 0 requires inherently at-risk individuals to suffer elements of harm-through isolation, quarantine, or compulsory vaccination-in order to advance the public good and secure the public-at-large from exposure to the spread of an infectious disease." Therefore, it is reasoned that individual inconvenience or sacrifice is 12 minimal when compared with the communal benefits of health and safety. Accordingly, under this health care management and decision-making model, the government seeks to balance individual liberty interests and rights against the communal benefits which may result from a limitation or restriction of those liberties. Typically, this balancing of individual rights does not outweigh community health benefits.13 When public health strategies are in place to deal with emergencies or pandemics, there is, perhaps, always a fear-if not a risk-that a police state could develop. This fear develops among the public because unnecessarily broad and arbitrary powers are conferred upon health officials with uneven levels of accountability. 14 While the government may limit personal freedoms in times of national emergencies, it must never 9. Jacobson v. Massachusetts, 197 U.S. 11, 24-27 (1905). 10. BARRY R. FURROW ET AL., BIOETHICS: HEALTH CARE LAW AND ETHICS 4 (5th ed. 2004). 11. LAWRENCE 0. GOSTIN, PUBLIC HEALTH LAW AND ETHICS 13 (2002). 12. Id. 13. Id. Balancing tests are utilized in other areas of law as well; for example, the cost- benefit test is foundational to nuisance law. See George P. Smith, II, The Morphogenesis of an HistoricalRevisionist Theory of Contemporary Economic Jurisprudence,74 NEB. L. REV. 658, 698 passim (1995). In public health governance law, the protection of a population's health is balanced against other policy objectives, normative values, and interests. After establishing that the public health action being advocated has a valid epidemiological and scientific basis, the proposed action should be tested by the principle of non-discrimination and the "least restrictive measure" test. Accordingly, healthcare measures that will interfere in an unreasonable manner with the public's pursuit and exercise of liberties or rights must be executed in reasonable ways which minimize such interferences, and are not seen as acts of invidious discrimination. Finding a point of equilibrium between these two policy objectives which, in turn, do not compromise legitimate efforts to advance and protect population health, is vexatious and, indeed, problematic. David P. Fidler, Global Health Jurisprudence:A Time ofReckoning, 96 GEO.